WA House LAWS - Committee Meeting
(March 21, 2023) - SB 5123 - Executive Session

Most committee members found they liked legislation limiting pre-employment cannabis screenings as written, deciding against approving two amendments to the bill before recommending passage.

Here are some observations from the Tuesday March 21st Washington State House Labor and Workplace Standards Committee (WA House LAWS) Committee Meeting.

My top 3 takeaways:

• A staff briefing addressed two possible amendments to SB 5123, “Concerning the employment of individuals who lawfully consume cannabis.”
  • Approved by the Washington State Senate (WA Senate) on February 22nd after adding an amendment excluding certain jobs from the bill, the legislation would prohibit “employers from discriminating against a person in an initial hiring decision based on the person's use of cannabis outside of work or based on a finding of nonpsychoactive cannabis metabolites in an employer-required drug screening test, subject to certain exceptions and other limitations.” WA House LAWS members heard the bill on March 14th.
    • A key difference between urinalysis and blood testing for cannabis had been that metabolites can remain detectable for weeks after consumption. 
  • Committee Counsel Kelly Leonard went over two amendments to the proposal (audio - 2m, video):
    • Amendment LEON 823 put forward by Assistant Ranking Minority Member Suzanne Schmidt “Codifies the underlying bill in chapter 49.94 RCW, rather than chapter 49.44 RCW, thereby subjecting its provisions to the limitations as well as enforcement by the Attorney General [WA OAG] provided under the Fair Chance Act.”
    • Amendment LEON 822 by from Ranking Minority Member Eric Robertson “Exempts positions with general authority law enforcement agencies, fire departments, local jails, and the Department of Corrections, and other positions as a first responder providing emergency medical services or 911 dispatch services from the prohibition against cannabis-related preemployment restrictions. Adds subsection numbering, and makes nonsubstantive wording changes to improve readability.”
    • Robertson emphasized that his amendment didn’t mandate the inclusion of cannabis testing in the hiring process for the listed entities, it “just gives them the latitude to do it in the event that they choose” (audio - 1m, video).
      • As cannabis pre-employment testing has been commonplace in government jobs like support for first responder agencies, the amendment would exempt established testing practices rather than allowing these agencies to set up cannabis urinalysis policies.
        • A few states and the City of New York have restricted testing for non-psychoactive metabolites, but jurisdictions that change the practice face resistance. 

• Amendments to add enforcement mechanisms and allow more law enforcement and first responder workplaces to continue pre-employment cannabis testing were both rejected by the majority of committee members.
  • Vice Chair Mary Fosse moved that SB 5123 be recommended by the committee (audio - <1m, video) and Schmidt then moved that amendment LEON 823 become part of the legislation language (audio - <1m, video).
    • RCW 49.94 “provides enforcement under the Attorney General's office,” Schmidt said, and she reasoned that incorporating the bill there allowed that office to leverage the “enforcement powers and penalties” statute. Urging passage, she indicated it allowed for investigations, education, the power to compel documents, and administrative sanctions, but also required WA OAG “utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows: A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation” (audio - 2m, video).
    • Representative Lillian Ortiz-Self noted that she’d been a champion of the Fair Chance Act which was “about prohibiting discrimination for those with a criminal record and cannabis is not illegal. So, there's no criminal record with the use of cannabis…for adults, and putting it into a criminal statute doesn't quite align.” She called for a ‘no’ vote on the amendment (audio - 1m, video).
    • Schmidt checked with staff to see if RCW 49.94 was a “criminal statute.” Leonard answered that the law was “related to labor and employment regulations,” not the “criminal code.” However, the powers in that statute “as currently written only applies to criminal records. This amendment would expand…the subject matter in that chapter to include the provisions and the underlying bill related to…pre-screening for cannabis” (audio - 1m, video).
    • A voice vote was taken and the amendment wasn’t adopted (audio - <1m, video).
  • Robertson made a motion for amendment LEON 822 to be added into SB 5123 (audio - <1m, video) and then explained his intentions for the change as being “more specific, and this amendment outlines…different agencies and organizations” which would be exempted from the measure, “but it also does not compel them…to administer a test” (audio - 2m, video).
    • “In law enforcement, you could have someone like an evidence control officer, or someone that works in a crime lab,” he remarked, “at a fire department there could be a medical services officer or someone of that nature that still is a sensitive position that is currently outlined in their employment practices, that they may want to continue to do this. I don't want this bill to take that away from employers that have established hiring practices where these other, still sensitive, but not sworn positions, are able to do so.”
    • Robertson called attention to drug overdoses reported in the Thurston County Jail. “These are important, sensitive positions,” he told committee members, and allowing their employers discretion to require urinalysis before hiring helped “ensure they have the highest quality qualified candidates for these important public safety positions.”
      • While the source of the fentanyl found in the jail hadn’t been confirmed, substance use in jails and prisons was a national problem - though drugs were also brought into correctional facilities by sworn personnel, family members of inmates, in addition to having been non-commissioned staff.
    • Fosse objected to the change, arguing “there is already a carve out set for positions that require security check, background checks, security clearance, as well as for positions…where the work presents substantial risk of death.” Finding “this amendment as written is just a bit too broad” and included “office staff, [information technology] IT staff,” she didn’t want to cut out otherwise good job applicants who could be taking “marijuana for medical reasons.” Fosse felt the existing “carve out” was sufficient and “respectfully” asked members to oppose the amendment (audio - 1m, video).
    • The change wasn’t adopted during a committee voice vote (audio - <1m, video).

• With no changes to the legislation, members offered final statements on the issue before a divided vote along party lines resulted in a committee recommendation for passage of SB 5123.
  • Chair Liz Berry spoke up to support the legislation as it “protect[ed] workers in our state who legally use cannabis…by limiting pre-employment screenings and prevents discrimination from cannabis use in Washington, just like alcohol is permitted” (audio - 1m, video).
  • Robertson called for a ‘no’ vote as cannabis remained federally prohibited and he thought “a lot of employers in this state that have federal contracts and other things that would be harmed by their inability…to do this.” Remarking that he was personally “kind of ambivalent about cannabis myself,” he remained troubled that “we don't have a definitive list and the ability for public safety agencies now…to vet their candidates for high sensitive areas that they see fit” (audio - 1m, video).
    • Exemptions in section 2(2), (3), and (4) of the bill cover testing policies related to:
      • “obligations of an employer to maintain a drug and alcohol free workplace, or any other rights or obligations of an employer required by federal law or regulation,”
      • “federal government background investigation or security clearance or in the airline or aerospace industries, or any other safety sensitive position for which impairment while working presents a substantial risk of death,” 
      • “state or federal laws requiring applicants to be tested, or the way they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or as required by a federal contract.”
  • A roll call vote was taken and the majority of the committee recommended adoption, with minority caucus members Robertson, Schmidt, and Representative April Conners against registering their opposition to passage (audio - 1m, video).
    • With no determinable fiscal impact previously reported by staff, the bill would likely be sent to the Washington State House Rules Committee (WA House RUL) to await further action and potential calendaring for a vote by the full chamber.

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